Parenting Plan terms

Custody versus Residential Placement

In Washington State the term “residential placement “is used rather than “custody.” Separating couples will ask the court to determine where the child’s primary residence will be and adopt a schedule accordingly. In the case of a 50/50 split of residential placement (called joint custody in other states) courts may approve such arrangements. However, from both a practical and legal standpoint these arrangements are usually conditioned on the parents sharing a history of cooperation and agreement with respect to parenting issues.

Joint decision-making powers

Parenting plans outline the types of decisions parents are faced with; educational, religious, and health care to name a few. In many cases both parents get to participate equally in these major types of decisions. Sometimes, however, there may be reasons why one parent’s decision-making powers may be limited. In cases involving substance abuse or domestic violence, or any type of issue which might impact a person’s ability to make parenting decisions, the courts may grant decision-making power to one parent alone.
While parenting plans have something of a standard format, the truth is that the parenting plan relating to your child should be unique to your situation and your child’s needs. Once a parenting plan is filed and approved it has the status of an order and cannot be changed without going back to court. Make sure that you understand the terms of your parenting plan and what it means for your child.

Can one spouse legally stop the divorce?

In the movies we hear a fictional husband or wife shout dramatically “I will never let you get a divorce!” The reality in Washington State is somewhat different. One spouse can affirm that the marriage is over by invoking the one legal ground for divorce, that the marriage is “irretrievably broken.” Stating this assertion in the appropriate legal divorce document (the Petition for Dissolution) is all that is necessary—no proof is required. But while a spouse cannot stop the divorce from being initiated, he or she does have a right to dispute issues that arise out of the divorce regarding division of property, placement of children, etc. These disputes can make a divorce a more prolonged process. And while some disputes are a healthy aspect of our justice system, the goal for every divorcing spouse should be to identify those issues that are true points of contention and work to resolve those disputes in a timely manner.

List important legal and other issues

The best way to identify what is at issue between you and your divorcing spouse is to make your own list of important issues. Some of these issues may be extra-legal –they may not require the intervention of the legal system but they may be important to you. Write down those issues that you see arising upon a potential separation – not just issues surrounding division of your home and bank accounts, or where you see the children living, but also other issues; who keeps the dogs or the cats if you have them, who pays for magazine subscriptions, etc. Being concrete will assist you in either coming up with a mutually agreeable plan or knowing where your issues of contention lie.

What if it seems my spouse will never be reasonable?

If your spouse does not seem willing to reach any kind of agreement about any issue then you must be prepared to proceed forward with an attorney on your side. Your attorney will protect your interests fairly and completely just as they would if they were reaching a settlement for you. Divorce, like marriage, is a dynamic process, however, and a seemingly unreasonable spouse can change their positions as the process moves forward. An important goal is for you to maintain a consistent and fair approach, with appropriate guidance that will help your divorce go forward as smoothly as it can.

Spousal maintenance is not mandatory in Washington State

Spousal maintenance, unlike child support, is not mandatory in the State of Washington; a court may order it if it determines that it is “just and equitable.” There are no hard and fast rules as to what is just and equitable, however the court may consider among other things such factors as:

• the needs of the spouse seeking support
• the ability of the other spouse to pay
• the length of the marriage
• the standard of living maintained during the marriage
• the existence of any child support obligations

Spousal maintenance may be short- or long-term

While the courts have fair discretion in determining whether spousal maintenance is granted, in short-term marriages maintenance awards tend to also be short term. Similarly in long-term marriages where one spouse might have not worked or pursued a career, a court might grant a long term award. Courts might also grant “rehabilitative maintenance,” an award of spousal support that allows one spouse time to become economically self-sufficient.

Awards for spousal maintenance do not follow a formula

The law surrounding awards of spousal maintenance are, like many other types of family law, not completely set in stone. While the courts may follow general principles outlined above, the law is constantly evolving and expanding. Unlike child support, which is governed according to a specific State Schedule, spousal maintenance has no formula relating to income that guides its application.

When to represent yourself in a divorce or other legal action

Whether you are a spouse who is leaving a marriage and want to know whether you can seek spousal maintenance from your spouse—or whether you might be obligated to provide spousal maintenance—it is a good idea to consult a family law attorney so that you know your potential rights and obligations.

Decide for yourself how you want to manage end-of-life issues

In the State of Washington a Living Will, or Health Care Directive, is a legal document used under two circumstances:

1. When you have a terminal condition and life sustaining treatment would only prolong the process of dying, and;
2. Where you are in an irreversible coma and there is no reasonable hope of recovery.

By specifying what your wishes would be in a living will you can direct your own medical care at the end of your life.

“Who will make decisions for me when I can’t?”

Another important health care document that everyone should have is called a Durable Power of Attorney for Health Care, or Medical Power of Attorney. This document lets you name a “health care agent”, a person who you trust who is authorized to make medical decisions for you regarding treatment if you become unable to make those decisions for yourself.

Make your wishes known to your health care provider

The Physicians Orders for Life Sustaining Treatment (POLST) is a form signed by your physician that takes your wishes as expressed in your living will and medical power of attorney and provides clear directions for medical orders regarding such specific medical interventions as antibiotics, fluid and nutrition, and life sustaining treatments should you become incurably ill.

Preparing these documents in advance ensures that in the event of a medical emergency or crisis your wishes will control the situation and you will lessen the stress of those around you.

A different model of legal service

Think of it as separating out or “unbundling” the various legal tasks involved in the divorce process to get the most cost effective services from an attorney. If you learn that starting the divorce process involves filing, say, five documents you might go to an attorney for advice and assistance in preparing those documents to be filed with the court. The attorney might not actually go to court with you, however he or she will ensure that all documents are appropriately ready to be presented to the court. You could continue to pay that attorney for their time to assist you in further filings and preparations of documents. While you would be representing yourself on the record, you would under the guidance of an attorney, be doing so in an informed way and be saving yourself many billable hours of legal fees.

Another type of unbundled legal service might be a matter where an attorney provides a “limited scope of representation” in a particular issue. The attorney might step in to negotiate one aspect of your case even if the other side were represented by an attorney perhaps to reach a settlement.

Are unbundled services always appropriate?

Unbundled services are not always the best option in every case. These services might not be appropriate in a situation where the other side has an attorney who is representing them and the issues are highly complicated and contested. It requires you as a client to be an extremely active participant in your case and to be prepared to do some footwork in terms of court filings if you were to represent yourself. It is an option that works best where the issues involved can be agreed upon.

1. Are you aware of what the outstanding issues are?
2. Are you and your spouse in agreement about all these issues?

If the answer to both questions is yes, you may be in a position to go through the divorce process by yourself. If you are dealing with complex issues, you still might want to contact an attorney during the process of your separation in order to be sure that you have not missed anything. In this article I will discuss some of the major issues facing a separating couple.

What happens to the children?

In Washington State, issues relating to children are outlined in a legal document called a Parenting Plan. For all matters relating to married or unmarried couples with children a Parenting Plan must be entered with the court. This document deals with where the children live and what the children’s schedules are in terms of weekends, holidays etc.

In Washington the courts talk about “placement” rather than custody when it comes to children. The decision as to who gets primary residential placement is determined by the amount of time the child or children spend with one spouse. Usually if the children reside more than 50% of the time with one parent, that parent will have the designation of primary residential placement. Although one parent may have more residential time than another this does not mean that parents cannot share joint decision-making powers about things such as medical care, schooling etc. A Parenting Plan will define how these powers are allocated. The guiding principle in all matters relating to child custody and visitation is “the best interests of the children”.

Child Support

Child Support in Washington is based on a set of presumptive guidelines according to the Washington State Support Schedule. The Schedule provides formulas using combined incomes from both parties to determine how much support will either be set on a presumptive or an advisory basis. For combined incomes below $5000 the court has a presumptive amount that it may set. For incomes above $5000 the court has an advisory amount that it may set. The court may deviate upward or downward from presumptive or advisory amounts according to the circumstances of the case if it deems it to be fair and in the best interests of the children.

Spousal Support

What is commonly referred to as alimony is called spousal maintenance in the State of Washington. Spousal maintenance is not a given: If it is not agreed to and it is asked for , it will be determined on a case by case basis with the court balancing one party’s need with the other party’s ability to pay. The court will look at, among other things, the length of the marriage and the economic circumstances of each party.

What happens to the house?

If you and your spouse own a home outright or on which you are paying a mortgage, on separation a decision must be made as to what to do with the house. If the down payment and subsequent payments on the home were made through the earnings of either spouse while living together, then the house might be considered “community property” which means that each spouse has a presumptive 50/50 interest. The house could be sold, with the proceeds going to pay off the mortgage first, then a split would be made to divide what is left over equally between the spouses.

If one spouse wanted to stay in the house, an equal division could involve the spouse who keeps the house paying off the other spouse for whatever portion of equity remains in exchange for signing a quit-claim on the house. A quit-claim is a legal document that gives up a person’s interest in a piece of property.

These are just a few options regarding division of a home. Parties are free to agree to any division as long as it is “just and equitable.”

How are other assets and liabilities divided?

As a “community property” state, in Washington there is a certain set of presumptions about the division of property acquired before and after marriage. Presumptively, property acquired before marriage and gifts and inheritances to one spouse alone would remain the separate property of that spouse upon separation. Property acquired after marriage, including earnings from employment, are presumptively community property and subject to a 50/50 split. This presumption, however, can be overcome if it can be established that it is just and equitable to do so.

The allocation of debt is also subject to community property presumptions based on whether the debt was incurred during the life of the marriage and before separation. Again, courts will also consider whether the allocation is just and equitable.

“How much is this going to cost?”

A big question on everyone’s mind when they go to see a lawyer on a matter is “How much is this going to cost me?” You are entitled to, and should, ask this question up front. A lawyer’s pricing structure should be clear—lawyers often charge by the hour or sometimes they have flat fee agreements if the matter has a definite end point (drafting a document such as a contract or will for example). Another option is for lawyers to take cases for “contingency” fees, that is, the client pays no money up front but the attorney will receive a percentage of any money that is won in an eventual lawsuit. However an attorney chooses to price a case, that pricing needs to be fully explained to you before you sign any agreement with the attorney for representation.

Complex cases can be difficult to estimate

In cases involving complex contested issue, a precise answer as to what a case will cost is more difficult to give. The answer “It depends” is not a satisfying one. Nor should it be. While no attorney can see into the future in matters that may be hotly argued it is reasonable for a client to ask for an estimate of what a matter would cost if it were to go to court.

Be an active participant in your representation

While you may not understand the intricacies of the law as it affects you, you can think about your situation and what might be acceptable outcomes for you before you consult with an attorney. In a family law case particularly when it comes to division of property, you might want to think about what issues you feel could be settled or agreed to off the bat. It is a simple truth that conflict in the legal world is costly for a client. If there are issues to be agreed upon you should consider them first if you can and consult with an attorney to make sure that what you are agreeing to is fair and reasonable. If some conflict is unavoidable it is still possible to isolate issues that can be agreed on saving you expense and time.

The best way to keep the cost of a divorce down is to 1) understand the process and what the issues are, and 2) try to reach an agreement on all the issues that are outstanding. Coming to an agreement about issues with a spouse with whom you are separating is for many people a difficult thing. There are always extreme cases where one spouse will never be reasonable or agree to what is fair. The truth is that for many divorcing couples, no matter how contentious and bitter a separation may be at the beginning there is a middle ground that can be reached through negotiation by both parties. This negotiation may or may not require a lawyer.

Coming to a fair settlement

In complex cases involving property settlements, children, and homes it is advisable for people to find lawyers who are willing to have cases settled fairly, if at all possible. A fair settlement does not mean that you do not advocate for your rights in the process of reaching that settlement. It will involve you or your lawyer protecting your best interests and being prepared to go to court on major issues that cannot be resolved by any other means. The bottom-line, however, is that the more you can avoid contested court hearings–while still preserving your interests and the best interests of your children–the more money will remain for you and your spouse to be divided between you (and for the benefit of any children you might have). If a fair settlement is at all possible, its cost is far less than the cost of a court battle.

Divorce documents

A finalized divorce, or Dissolution in the State of Washington, requires a number of different documents to be filed. If the parties reach a settlement, one document that could be filed at the party’s option is called a property settlement agreement or separation contract. This legally binding agreement deals with the property issues between the separating couple such as what happens to the home, cars, cash, and debts. It might also include provisions for spousal maintenance and an acknowledgement of child support and any Parenting Plan that is filed with the court.

The contract can be filed with the final divorce papers subject to court approval. If it is so approved the contract becomes part of the final dissolution decree or judgment and is enforceable by the court if one party were to later breach the contract. A court will generally approve a separation contract if it fulfills three requirements:

1. Both parties had full disclosure of all the assets and liabilities that were at stake;
2. Each party had the opportunity to consult an independent attorney, and;
3. The agreement was entered into in good faith.

Agreements sometimes seem difficult to reach between separating couples. But if both parties can make good faith efforts an agreement is the best way to keep divorce costs down.

Divorce = Dissolution

In the State of Washington a divorce is called a “Dissolution.” One of the final legal documents that you will obtain from the court is called a Decree of Dissolution. When this document is finalized, your marriage is officially ended.

“No Fault”

Washington is a “no fault state”, which means simply that to get a divorce or separation you don’t need to prove that either spouse did something wrong. In fact contrary to what many believe, wrong-doing by either spouse is never relevant as grounds for a divorce in Washington. A spouse’s actions or wrong-doing can be relevant in deciding issues relating to custody, visitation, and even division of property in certain circumstances, but in terms of the dissolution of the marriage itself fault is never an issue.

Grounds for divorce

There is only one ground for dissolution in Washington and it is that the marriage is “irretrievably broken.” What does that mean? It basically means that one of you is claiming that the marriage cannot work anymore. In your Dissolution papers you need do nothing other than make the statement that the marriage is irretrievably broken. No proof or details about the reason are necessary.

What is a “community property” state?

Washington is what is called a “community property” state. What this means is that when dividing property of spouses upon dissolution there is a presumption that all property acquired during the marriage is jointly owned 50/50. Property includes earnings of each spouse, real estate, and personal property. This rule is not absolute. Certain property is presumed to be “separate”, and includes anything acquired before marriage as well as gifts or inheritances that are made explicitly to one spouse alone. While the rules relating to what is community property and what is separate property are guided by these principles, the overriding principle regarding division of property upon dissolution in the State of Washington is that it be “just and equitable.” In a word, fair.

Custody of children

In Washington, the custody of children of the marriage is referred to as “residential placement” and the document governing where the children are to reside is called a Parenting Plan. This must be filed in all Dissolutions involving children. A Parenting Plan will, among other things, spell out where the children will reside, whether one or both parents get to make decisions about the children, and provides a schedule of how parental time with children is specifically allocated. The Primary Residential Parent is the parent with whom the children spend more than 50% of their time.

Determining Child Support

Child Support in Washington is determined legally by the Washington State Support Schedule. The Schedule provides formulas using combined incomes from both parties to determine how much child support will be paid by one parent to the other. For combined incomes below $5000 the court has a presumptive amount that it may set. For incomes above $5000 the court has an advisory amount that it may set. The court may deviate upward or downward from presumptive or advisory amounts according to the circumstances of the case if it deems it to be fair.

Spousal Maintenance (Alimony)

What is commonly referred to as alimony is called “spousal maintenance” in the State of Washington. Spousal maintenance is not a given: If it is not agreed to and it is asked for, it will be determined on a case-by-case basis with the court balancing one party’s need with the other party’s ability to pay. The court will look at, among other things, the length of the marriage and the economic circumstances of each party.